Exch. of Pleas. 1829.—An agreement between three persons carrying on the trade of trunk and box makers, and travelling, by themselves and their servants, into various parts of England, to vend trunks and boxes, to divide, and not interfere with certain districts of the several cities, boroughs, towns, and villages, as set forth by them on Bowles's Post-map of England; and that each, during his life, by himself, and his agents duly authorized, shall travel into, to sell trunks and boxes in his way of business, without any interruption whatsoever, by either of the other two, during their joint lives, in certain cities, boroughs, towns, and villages, and not to suffer any goods in the said trade to be manufactured at their respective shops or warehouses, or to be sent from their respective shops, houses, or warehouses, or from any other place, for the purpose of being sold or disposed of on the ground to be travelled by the other parties thereto; and not to aid or assist any person to oppose all, or any, and either of the parties; and not to purchase any tea chest or chests, black or green, at a higher price than 6d. or 8d. each in Oxford; and in case, at any time, during their joint lives, any person or persons shall set up and oppose any or either of the parties, to meet together, and enter into such mutual agreement, to the intent therein agreed to, as shall be beneficial to. the mutual interests of the parties, it being declared to be their intentions not to do any act prejudicial to the interests of each other, but to aid and assist each other in their said trade and business, to the utmost of their power, does not operate in general restraint of trade, and, as an agreement contemplating a partial restraint only, is founded on a sufficient and valid consideration. Therefore, counts setting forth the same, and averring, by way of breaches, that the defendant travelled into the districts of the plaintiff, and sold boxes therein:—Held good, on general demurrer.

[Referred to, Young v. Timmins , 1831, 1 C. & J. 336; Mogul Steamship Company v. M'Gregor , 1889, 23 Q. B. D. 628; Urmston v. Whitelegg , 1890, 63 L. T. 455.]

Assumpsit. The first count of the declaration stated that, before and at the time of making the articles of agreement, and the promise and undertaking of the said *1203 defend- [319] -ant thereinafter next mentioned, the said plaintiff was a box-maker, and the trade, business, and calling of a box-maker had used, exercised, and carried on, and still did use, exercise, and carry on, to wit, at Oxford, in the county of Oxford; and whereas, before and until the making of the said articles of agreement, the said plaintiff, from time to time, travelled, by himself and his servants, into various parts of the country, and of the several districts in the said articles of agreement mentioned and referred to, for there vending trunks and boxes, by him made in his said trade, business, and calling; and the said defendant and one William Fletcher also severally and respectively exercised and carried on the said trade, business, and calling of box-makers, and, severally and respectively, travelled into various parts of the country and of the several districts aforesaid, for there severally and respectively vending and selling trunks and boxes, to wit, at Oxford aforesaid, in the county aforesaid; and thereupon, theretofore, to wit, on &c., at &c., by certain articles of agreement, bearing date a certain day and year, to wit, &c., then and there made and entered into, between the said William Fletcher, of the first part; the said defendant, of the second part; and the said plaintiff, of the third part; reciting, that, whereas the said William Fletcher, Daniel Evans, and Joseph Wickens had, for several years last past, travelled into various parts of the country, vending trunks and boxes for sale, but, on account of the inconvenience and loss which they severally acknowledged to sustain, by reason of their exercising their trade and calling in places which they wished to keep separate and distinct from each other, they, the said William Fletcher, Daniel Evans, and Joseph Wickens, had, in consideration thereof, agreed to divide the same, and enter into the terms and conditions thereinafter mentioned relative to such division, (that is to say), the said William Fletcher, Daniel Evans, and Joseph Wickens did thereby, [320] severally and respectively, agree with each other to divide, and not interfere with certain districts of the several cities, boroughs, towns, and villages, set forth on Bowles's Postmap of England and Wales, thereto annexed and referred to, and signed with the respective proper hand-writing of the said William Fletcher, Daniel Evans, and Joseph Wickens, it being the true intent and meaning of the said parties thereto, and of those presents, that the said William Fletcher should and might, at all times thereafter, during the life of the said William Fletcher, by himself and his agents (duly authorized only), travel into, to sell trunks and boxes in his way of business, without any interruption whatsoever by the said Daniel Evans and Joseph Wickens, or either of them, during their joint natural lives, in the several cities, boroughs, towns, and villages, marked with ink, and set out with black cotton, so set forth and described on the said map, as aforesaid; and also, that the said Daniel Evans should and might, at all times thereafter, during the life of him the said Daniel Evans, by himself and his agents (duly authorized only), travel into, to sell trunks and boxes in his way of business, without any interruption whatsoever by the said William Fletcher and Joseph Wickens, or either of them, during their joint natural lives, in the several cities, boroughs, towns, and villages, marked with ink, and set out with black cotton, so set forth and described on the said map, as aforesaid; and also, that the said Joseph Wickens should and might, at all times thereafter, during the life of him the said Joseph Wickens, by himself and his agents (duly authorized only), travel into, to sell trunks and boxes in his way of business, without any interruption whatsoever by the said William Fletcher and Daniel Evans, or either of them, during their joint natural lives, in the several cities, boroughs, towns, and villages, marked with ink, and set out with black cotton, so set forth and described on the said [321] map, as aforesaid. And it was thereby further agreed by and between the said parties thereto, that they, and each of them, should also be at liberty to travel, for such purposes of trade as aforesaid, during their joint natural lives, as aforesaid, to all such other places as might thereafter be built, although not set forth on the said map, so as such trading should not interfere with either of the said districts of the said parties thereto, so respectively marked out on the said map, as aforesaid; and also, it was thereby further agreed by and between the said parties thereto, that they should not, directly or indirectly, allow or suffer any goods in their said trade to be manufactured at their respective shops or warehouses, or be sent from their or his respective shops, houses, or warehouses, or from any other place, for the purpose of being sold or disposed of, on the ground to be travelled by the said parties thereto, so marked out on the said map, as aforesaid, or in any manner whatsoever participate in any profits arising from any sale of the said goods in such respective *1204 districts as aforesaid, and so thereby agreed to be divided as aforesaid; and also, should not aid and assist any person or persons whomsoever, to oppose all, any, or either of the said parties thereto, in the said trade, in England and Wales; and it was thereby further mutually agreed by and between the said parties thereto, that they and each of them should not, nor would, during their joint natural lives, as aforesaid, buy or purchase any tea chest or chests, black or green, at a higher price than 6d. or 8d. each in Oxford; and it was thereby lastly agreed by and between all the said parties thereto, that they should not, by themselves, or either of them by himself, nor should their, or either of their servants or agents in that behalf, travel into the districts of each other, so set forth on the said map, or into any other place which might be thereafter built, forming the route of either of the said parties thereto, in the way of their or his said trade and business, to the injury and prejudice of each other. And [322] for the true performance of that agreement, each of the said parties thereto bound himself unto the other of them, in the sum of 40l. as to the sale of trunks and boxes, and 10l. as to the purchase of any tea chest or chests, black or green, at a higher price than above stated, for each and every offence or infringement of all or any of the clauses above contained, to be recovered by way of liquidated damages, against the party or parties who should be guilty of any breach of that agreement, or of any part thereof. And moreover, it was further agreed, that if, at any time thereafter, during the joint natural lives of the said parties thereto, any person or persons should set up and oppose any or either of the said parties, in the said trade of box and trunk making in England and Wales, then, that the said parties thereto should and would meet together, and enter into such mutual agreement, to the intent therein above agreed to, as should be beneficial to the mutual interests of the said parties thereto, it being their, and each of their, true intention, not to do any act prejudicial to the interests of each other, but to aid and assist each other in the said trade and business, to the utmost of their power.

Breach—That the said defendant, not regarding the said articles of agreement, nor his said promise and undertaking, did afterwards, to wit, on &c., and at and on divers, to wit, nine other times and occasions, betweeen that day and the day of exhibiting the bill of the said plaintiff against the said defendant, travel, by himself and his servants and agents in that behalf, into the district of the said plaintiff, so set forth on the said map, in the way of his, the said defendant's said trade and business, to the injury and prejudice of the said plaintiff, and did thereby commit divers, to wit, ten offences and infringements of the said articles of agreement against him the said plaintiff, whereby, and according to the form and effect of the said articles of agreement, the said defendant forfeited and became liable to pay to the said plain- [323] -tiff the sum of 40l. of lawful money of Great Britain, for each and every of the said offences and infringements of the said articles of agreement by him the said defendant, amounting together to a certain large sum of money, to wit, the sum of 400l., &c.

The second count, after setting forth the agreement as in the first count, proceeded to aver, as breaches, that the defendant, on divers, to wit, nine times and occasions, did travel, by himself, and his servants and agents in that behalf, into the district of the plaintiff, in the way of the defendant's trade and business, and did, at and on each of those times and occasions, sell and dispose of divers large quantities of trunks and boxes, in the way of his said trade and business, amounting, in the whole, to a large sum of money, to wit, the sum of 3000l., and thereby hindered and prevented the said plaintiff from selling and disposing of divers and very many trunks and boxes, which he otherwise might and would have there sold and disposed of, &c. General demurrer to the first and second counts, and joinder therein.

Taunton, W. E., in support of the demurrer. The agreement stated in the first and second counts of this declaration, operates in general restraint of trade, and is, therefore, void, or it is an agreement for a partial restraint, without a sufficient consideration. From the recitals, it appears to have been the object of the parties, to avoid the inconveniences they experienced, as competitors, from underselling each other, which, however, although a loss and a prejudice to them, was a benefit to all the subjects of the realm. The intent of each party is, to monopolize the business of a box-maker, and to secure to himself an exclusive sale in the particular district marked out on the map; and, for this purpose, each engages not to manufacture or sell goods, or to aid other persons in manufacturing or selling goods, to be sent into the districts *1205 of the other [324] parties, and not to travel into those districts. They are not to purchase tea chests in Oxford at a higher price than is agreed upon; and, if they meet with any opposition, they are to concert measures for their own benefit. All these stipulations are inconsistent with the policy of the law; and the combination is illegal. Now, it is quite clear, that any agreement for the total restraint of trade, that is to say, an agreement whereby an individual is restained from trading throughout the whole realm, during his life, is bad; but it is conceded, that a partial restraint may be good, provided there is a sufficient legal consideration. This distinction has long been admitted and acted upon. Prugnell v. Gosse (Al. 67), Broad v. Jollyfe (Cro. Jac. 596), Anonymous (Moore, 114), 2 Wms. Saunders, 156, n. l. In Claygate v. Batchelor (Ow. 143; Cro. Eliz. 872), it was held, that the condition of a bond, restraining an apprentice from using the trade of a haberdasher within the county of Kent and the cities of Canterbury and Rochester, for the space of four years, was against law. Three reasons are assigned for this judgment:—“It is against the liberty of a freeman, and against the statute of Magna Charta, cap. 20, and is against the commonwealth. And Anderson said, that he might as well bind himself that he would not go to church.” This decision is noticed by Parker, L. C. J., in his judgment in Mitchel v. Reynolds (1 P. Wms. 181), wherein all the law upon this subject is fully explained. In Comyns's Digest (tit. “Trade,” (D.)), all the cases are collected, and the author lays it down, on his own authority, that “an obligation or promise, which restrains the total use of a man's trade for four years, will be void.” In Davenant and Hurdis, cited in the case of Monopolies (11 Rep. 86), an ordinance by the company of Merchant Tailors of London, directing that every bro- [325] -ther of the society should put out one half of his clothes to some brother of the said society, who exercised the art of a clothworker, was declared to be against the common law and the freedom of the subject, and was, therefore, adjudged void. In that case, nothing operated to the total restraint of trade, inasmuch as the ordinance related only to the brothers of the society. [Hullock, B. But there was no consideration for the partial restraint.] There was a latent consideration arising from the obedience due from every member to the laws of the company, and an indirect benefit springing out of this bye law. The result of the decisions relative to the adequacy of the consideration is, that there must be an extrinsic, foreign and collateral consideration, dehor the instrument, and not merely such as arises, as in this case, only upon the face of the instrument itself. That was the case in Homer v. Ashford (3 Bing. 322). But, supposing that is not necessary, the only consideration here expressed amounts to an illegal combination between the three parties, to obtain a monopoly in their trade, throughout England. Such a combination, if good in the case of three persons, must be equally so with regard to any number. Thus, the brewers or distillers in London might enter into a similar agreement to divide the Metropolis into districts, the effect of which might be to supply the public with a commodity prepared with inferior ingredients, at a higher price.

Cross, G. R., contrà. The law is correctly stated, when it is said, that no considertion can support an agreement operating as a general restraint of trade. Here, however, the restraint contemplated is not general, but confined to particular limits; and there is also an adequate and good consideration. The judgment in Mitchel v. Reynolds (10 Mod. 130), and all the antecedent cases there referred to, clearly es- [326] -tablish, that a contract, not to exercise a trade within a particular place or parish, is good, if made upon a fair and just consideration. That judgment also shews, that it is no good objection to a voluntary restraint, that it is against Magna Charta, or the liberty of the subject, for “Magna Charta provides against force and power, and not the voluntary acts of men; and if I sell my liberty to trade, it is no longer mine, but his to whom I sell it” (10 Mod. 134). In Colmer v. Clark (7 Mod. 230), a bond, restraining the obligor from carrying on his trade within the city and liberty of Westminster and the bills of mortality, for a limited time, was held good in law, the restraint from the exercise of trade being confined to a particular district, and founded on a valid consideration. The case of Chesman v. Nainby (2 Stra. 739; Lord Raym. 1456; Bro. Parl. Ca. 349), was an action on a bond conditioned not to set up the trade of a linen-draper, or to assist or instruct any other person in the managing and carrying on of that trade, within the space of half a mile from the plaintiff's dwelling-house, or of any other house, to which she, her executors, or administrators, might think fit to remove. This bond was held to be valid, and the plaintiff obtained judgment, which was affirmed on error. In like manner, in Davis v. Mason (5 T. R. 118), a bond, not *1206 to practise as a surgeon, for fourteen years, within ten miles of the town of Thetford, where the plaintiff lived, was held good, although it was objected, that the limits, as to time and place, were unreasonable. Lord Kenyon, C. J., in that case, observed:—“I do not see that the limits are necessarily unreasonable, nor do I know how to draw the line Neither are the public likely to be injured by an agreement of this kind, since every other person is at liberty to practise as a surgeon in this town.” This last observation applies forcibly to the agreement now in question, inasmuch as every other box-maker is at liberty [327] to carry on business in any of the districts to which the agreement is referrible. Nor is the consideration insufficient or invalid. “A consideration of loss or inconvenience, sustained by one party at the request of another, is as good a consideration in law for a promise by such other, as a consideration of profit or convenience to himself.” Per Lord Ellenborough, C. J., in Bunn v. Guy (4 East, 190-4). Here, then, there appears, upon the face of the agreement, to be a benefit obtained by the defendant, and a loss incurred by the plaintiff, at the same time that the public will not be deprived of the advantages arising from the competition of other box-makers, and, it is to be presumed, will obtain boxes and trunks cheaper from these three parties, by reason of the deduction of two-thirds from the expenses of travelling. The stipulation of the parties to aid and assist each other, is nothing more than is commonly undertaken by all partners, and, therefore, cannot vitiate the contract.

Taunton, in reply. It is the policy of the law to support the freedom of trade; and, therefore, all contracts imposing particular restraints, are, primâ facie, presumed to be void. In former times, they were looked upon by the Courts with great jealousy, as appears from the strong expressions of Judge Hall (2 H. 5, f. 5):—“A ma intent vous purres aver demurre sur luy que le obligation est void, eo que le condition est encountre common ley, et per Dieu si le plaintiff fuit icy, il irra al prison tanq: ill ust fait fine au roy.” In all the cases cited there was an extrinsic consideration, independent of the agreement, and a loss and benefit before the agreement was entered into, as in the ordinary instances of a tradesman giving up the goodwill of his business to his shop-man or apprentice.#p#分页标题#e#

Garrow , B. This question, as it appears to me, is [328] confined within a narrow compass; and, as we have all formed the same opinion, I shall state my view of it very shortly. The principles upon which the decisions upon subjects of this nature are founded, have been accurately stated; and, indeed, have so frequently and so long been acted upon, that they are now indisputable. A general, universal, restraint of trade, inasmuch as it affects the public property and the interests of the community, is bad; and those to whose interests it more immediately relates, cannot make it good by any consideration passing between themselves. But, it is submitted, that there may be, upon a good consideration, a partial restraint of trade; and that an agreement for that purpose is sustainable, and has been sustained. The legality of a partial restraint of trade has been established in a variety of cases; and the general transactions of mankind furnish daily instances of its existence. Without resorting to the aid of black cotton lines, in order to divide all England into districts, there is no man engaged in trade who does not, in effect, impose some restraint upon himself, in point of practice, by confining himself within a particular district, and circumscribing his trade within certain bounds. It has been supposed that the public are interested in precluding the parties from entering into the agreement now in question; but, I think it very doubtful, whether the benefit of the public would be best consulted by these three persons continuing to travel over the whole country, or by each confining himself to the district marked out in the map. Let us see what is the case now presented. It appears, according to the recital in the agreement, that these three persons, in carrying on their business of box-makers, had travelled into various parts of the country to vend their boxes and trunks, and had sustained great loss and inconvenience by reason of exercising their trade in the same places. This is the mischief and evil recited in the agreement; and what is the remedy they propose? [329] Not a monopoly, except as between themselves; because every other man may come into their districts and vend his goods:—all they propose is, that they shall not carry on a rivalry, nor continue any longer to trade throughout the country. This, then, is only a partial restraint of trade. But, it is said that, admitting that to be so, there is no consideration extrinsic of the agreement itself; and that argument is illustrated by the cases of a master giving up his business to his apprentice or to his journeyman. *1207 It strikes me, however, that, in the present case, there is as good a consideration as in either of those alluded to. Each party here, before the agreement is entered into, has a trade in all the districts; and he agrees to retire, and to relinquish that trade in two of those districts, in order to secure the others in undisturbed possession. An objection is then made to that part of the agreement, by which it is stipulated, that in case other persons shall begin to trade as box-makers in any of the districts, the parties shall meet to devise means to promote their own views. What those means may be, it is unnecessary to surmise; but we cannot presume that they will be illegal; and, therefore, this stipulation does not affect the validity of the agreement.

Hullock , B. I think this demurrer ought to be disallowed. The question is properly stated, when it is said to be, whether there be a sufficient consideration. It is conceded that there may be an agreement for a partial restraint of trade, provided there be a good consideration. This doctrine is to be found in Comyns's Digest, and is laid down in all the cases cited in the argument; and the question is said by Lord Kenyon, in Davis v. Mason (5 T. R. 120), to have been at rest ever since the case of Mitchel v. Reynolds . I do not understand the principle upon which it is argued, that there is here no consideration, because it is not extrinsic [330] or foreign to the instrument. The law makes no distinction of that kind, but looks whether there is, upon the face of the instrument, a good and valid consideration, that is to say, either a benefit to one party, or a loss to the other. Upon that rule I should say that, upon the face of this instrument, there is a sufficient consideration. But, it is said, that the effect of this agreement is to create a monopoly; and that, by upholding its validity, we shall lead to other combinations for monopolizing trades. If the brewers or distillers of London were to come to the agreement suggested, many other persons would soon be found to prevent the result anticipated; and the consequence would, perhaps, be that the public would obtain the articles they deal in at a cheaper rate. Upon the whole, then, I cannot distinguish this case from any of those cited, in which an agreement for a partial restraint of trade has been supported.

Vaughan , B. I am entirely of the same opinion. The only question is, whether there appears upon the face of this agreement a sufficient consideration for the partial restraint of trade it contemplates. In consequence of the loss and inconvenience which it is recited the parties had before sustained, they entered into this agreement, by which the loss and benefit to each is reciprocal. In my opinion, this was an honest and upright contract, which has been the question in all the cases; and a contract by which the public are not injured, as they may be supplied upon easier terms.

Judgment for the plaintiff.